Guns, Guns Guns

PeterZ wrote:Absolutely! By all means re-evaluate. However, until the Amendments are repealed by a legally accepted mechanism, their meanings are NOT subject to revision. Which is what those that assert it is a living document believe is proper.

Except that exactly that happened until 2008. Until District of Columbia vs Heller, the presiding opinion was that the second amendment granted a collective (as opposed to an individual) right. For over 200 years, the interpretation was one thing and has now changed to something else; This can and will happen again. The assertion that the meaning as described in Heller was always the only meaning is patently wrong. The current interpretation may be closer to the original intent, but to claim that these things are not subject to revision or reinterpretation is just plain wrong.

http://www.supremecourt.gov/opinions/07pdf/07-290.pdf

Here is a link to actual ruling. The right was and is an individual one and the District of Columbia attempted to legislate that right into non-existence.

Quoted from the text of the ruling pertinent to the discussion: "In interpreting this text, we are guided by the principle that “[t]he Constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary as distinguished from technical meaning.” United States v. Sprague, 282 U. S. 716, 731 (1931); see also Gibbons v. Ogden, 9 Wheat. 1, 188 (1824). Normal meaning may of course include an idiomatic meaning, but it excludes secret or technical meanings that would not have been known to ordinary citizens in the founding generation."

The meaning and intent of the second Amendment at the time of the founding was never limited to national or collective defense via the militia. Participation in the militia was a responsibility inherent in the right to bear arms but does not limit the operative clause of the Amendment. As asserted in the clause itself, the individual right shall not be infringed. Neither the prefatory clause nor other legislation shall infringe our right individually to bear arms.

I don't see that Heller is a case of interpreting novel meaning into the Constitution. It clarifies the relationship between the actual words of the Amendment and how they apply to legislation meant to limit what the Constitution asserts is a fundamental liberty.

The E wrote:

PeterZ wrote:Absolutely! By all means re-evaluate. However, until the Amendments are repealed by a legally accepted mechanism, their meanings are NOT subject to revision. Which is what those that assert it is a living document believe is proper.

Except that exactly that happened until 2008. Until District of Columbia vs Heller, the presiding opinion was that the second amendment granted a collective (as opposed to an individual) right. For over 200 years, the interpretation was one thing and has now changed to something else; This can and will happen again. The assertion that the meaning as described in Heller was always the only meaning is patently wrong. The current interpretation may be closer to the original intent, but to claim that these things are not subject to revision or reinterpretation is just plain wrong.

PeterZ wrote:I don't see that Heller is a case of interpreting novel meaning into the Constitution. It clarifies the relationship between the actual words of the Amendment and how they apply to legislation meant to limit what the Constitution asserts is a fundamental liberty.

I know the reasoning here. Really. But the simple fact of it is that Heller was the first time this was actually stated as such. Prior rulings (admittedly non-SCOTUS) interpreted it differently. So, in a very real sense, the interpretation of the second amendment changed with the Heller decision (and Heller did not retroactively void those decisions).

No. Prior rulings presented lower court opinion on how the Constitution should be applied. SCOTUS ruled on how it would be applied. End of Story.

How SCOTUS ruled was based on what the words contained in the Second Amendment meant when they were written. That lower courts interpreted those words more loosely in prior rulings does not make those interpretations somehow more consistent with the original intent.

The E wrote:

PeterZ wrote:I don't see that Heller is a case of interpreting novel meaning into the Constitution. It clarifies the relationship between the actual words of the Amendment and how they apply to legislation meant to limit what the Constitution asserts is a fundamental liberty.

I know the reasoning here. Really. But the simple fact of it is that Heller was the first time this was actually stated as such. Prior rulings (admittedly non-SCOTUS) interpreted it differently. So, in a very real sense, the interpretation of the second amendment changed with the Heller decision (and Heller did not retroactively void those decisions).

HB of CJ wrote:It might also be quite possible that the founding fathers when they wrote the word "STATE", it was NOT the word state meaning a state of the union like Virginia, but the word state meaning a free state of being. A situation. An environment if you wish.

The people writing the Constitution had a pretty decent grasp on spelling and grammar. You do not capitalize such a "state". You capitalize it when it is a proper noun.

Not a state in the union. After all, how can a state in the union be "free"?

You realize the "State" also refers to the entire country right?

The Second Amendment is not about hunting. It is not even that much about the absolute right of self protection. It has everything to do with the ability of the armed population to overcome and overturn a tyrannical government. Difficult for some to understand. Original intent. Carved with ink into parchment.

You would THINK the words carved with ink into parchment wouldn;t be that difficult to understand, but here you are misunderstanding them again. Even after having it pointed out to you.

No the 2nd is most certainly absolutely NOT about "the ability of the armed population to overcome and overturn a tyrannical government". That is Treason. As also carved with ink into parchment in Article III Section 3 of that same document.

The Founders did NOT write the second to arm the people against their government. They wrote it to arm them to defend the nation, in the form of making up the militias, which were intended to be the PRIMARY military force of the State.

The defense against the government turning tyrannical was 2 part.

First and foremost, requiring regular freaking elections. That is the single most powerful defense against tyranny the US possesses. It is what has been doing the job of preventing tyranny for the entire history of the nation. Not your guns.

Second, NOT GIVING THE STATE A LARGE PERMANENT STANDING ARMY they could use to impose any such tyranny if they ever felt so inclined. Which the modern citizens of the country have enthusiastically forgotten all about while they cheerlead how big and bad that military has become, not to mention the gradual militarization of the police forces which can have a similar effect on a more local scale.

PeterZ wrote:No. Prior rulings presented lower court opinion on how the Constitution should be applied. SCOTUS ruled on how it would be applied. End of Story.

How SCOTUS ruled was based on what the words contained in the Second Amendment meant when they were written. That lower courts interpreted those words more loosely in prior rulings does not make those interpretations somehow more consistent with the original intent.

Peter, that isn't what I am getting at. My point is that, as far as the interpretation of the 2nd amendment goes, Heller changed things. Before Heller, it was applied one way. After Heller, a different way. In other words, the interpretation of the words changed, and it's not impossible that it will change again at some point in the future.

I don't believe it did. The writers of the DC law believed that the use of firearms could be limited simply to those uses that supported the state. That was never the broad view of the meaning the 2A. It has always been viewed as an individual right. The state can legislate the use of firearms, but not to the point where those limitations infringe upon the individual's right to own and bear those arms.

Just as the right use arms is not unlimited for the individual, the ability to legislate how that use may be limited is not without restrictions. SCOTUS has defined those limitations. Again, this is not re-interpreting how the law is applied, but setting those accepted limits. That is by definition applying the 2A and not re-interpreting it.

The E wrote:

PeterZ wrote:No. Prior rulings presented lower court opinion on how the Constitution should be applied. SCOTUS ruled on how it would be applied. End of Story.

How SCOTUS ruled was based on what the words contained in the Second Amendment meant when they were written. That lower courts interpreted those words more loosely in prior rulings does not make those interpretations somehow more consistent with the original intent.

Peter, that isn't what I am getting at. My point is that, as far as the interpretation of the 2nd amendment goes, Heller changed things. Before Heller, it was applied one way. After Heller, a different way. In other words, the interpretation of the words changed, and it's not impossible that it will change again at some point in the future.

PeterZ wrote:I don't believe it did. The writers of the DC law believed that the use of firearms could be limited simply to those uses that supported the state. That was never the broad view of the meaning the 2A. It has always been viewed as an individual right.

No, it really wasn't. If it was, Heller wouldn't have been such a landmark decision. The broad view you speak of first came into the judicial consensus with 2001's United States vs Emerson, and has been gaining traction since then, culminating in Heller. Before then, judicial consensus was firmly on the "collective right" side of the debate.

The E wrote:

PeterZ wrote:I don't believe it did. The writers of the DC law believed that the use of firearms could be limited simply to those uses that supported the state. That was never the broad view of the meaning the 2A. It has always been viewed as an individual right.

No, it really wasn't. If it was, Heller wouldn't have been such a landmark decision. The broad view you speak of first came into the judicial consensus with 2001's United States vs Emerson, and has been gaining traction since then, culminating in Heller. Before then, judicial consensus was firmly on the "collective right" side of the debate.

http://constitution.findlaw.com/amendment2.html
Nonsense. Miller simply set the extreme boundary of what type of firearm can reasonably be described as having a lawful use. A sawed off shotgun is a classic weapon that is meant to be concealed before use. What lawful use does that sort of weapon have? Miller found the number of such uses to be none.

So, Miller found that the use of a gun can be legislated. No disagreement with me. Heller found that there are limits on how the use of weapons may be limited. Both Miller and Heller used the words as contained in the 2A. They interpreted how those words applied to the specific cases at hand. Given the differences in the cases in question, the interpretation of those words moved away from either extreme and more to a central view of the 2A.

Miller asserted that the 2A can be legislated. Heller states that such legislation has limits in how it can infringe upon the 2A. Your assertion that the interpretation has changed is simply false. Both interpretations describe principles that continue to operate in opposing directions. Heller limits the prefatory clause that allows legislation on how arms are used, but not their ownership. Miller limits the operative clause protection to owning and bearing arms without infringement, not how the legally owned guns may be used.

Whether one classifies a principle as collective or individual is really one of describing the operating principles. It does nothing to change SCOTUS changed the meanings of the words in the 2A.

If you insist on describing collective and individual rights, then the 2A has elements of both. The individual has the unrestricted right to own and bear arms. The Constitution reserves the authority for the Federal government to legislate how those arms are used to some limited degree.

Lots of interesting legal argument here from people who obviously know much more about the judicial history than I do.
This still skirts my point that the US is unusual in that the discussion is based on what the original writers meant to say, as this is regarded as crucially important.
In a similar discussion here we would say that those people wanted whatever and it suited at the time, but no longer. We wouldn't thrash around debating what they meant, but just rewrite to suit us knowing that a further generation may well rewrite it again. Not done casually and would have to pass a referendum but the original meaning wouldn't be a significant part of the discussion.
Whatever suits each culture, but different basic premise.